Faizun Nabi Chowdhury Vs. The Judge Artharin Adalat No. 1, Dhaka and others 2017 (1) LNJ 98

Case No: Writ Petition No. 6537 of 2015

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Mr. A.K.M. Asiful Haque, Ms. Hosneara Begum,

Citation: 2017 (1) LNJ 98

Case Year: 2016

Appellant: Faizun Nabi Chowdhury

Respondent: The Judge Artharin Adalat No. 1, Dhaka and others

Subject: Artha Rin

Delivery Date: 2017-03-14

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

21.08.2016

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Faizun Nabi Chowdhury

. . . Petitioner

-VERSUS-

The Judge Artharin Adalat No. 1, Dhaka and others

. . . Respondents.

Artha Rin Adalat Ain (VIII of 2003)

Section 41

If a party to an Artharin suit is aggrieved by an order or decree of the Adalat, s/he is required to prefer an appeal subject to fulfillment of the conditions with regard to depositing money and time-limitation.        ...(13)

Artha Rin Adalat Ain (VIII of 2003)

Section 19

The reason for inscribing the provisions of depositing money and approaching the trial Court within a stipulated time for setting aside an ex-parte decree in the Ain, 2003 is to oblige the loanees to co-operate with the Adalat in disposing of the suits timely and, thereby, warn them not to play foul with the Adalat. The above preconditions have been put upon the loanees with an aim to discourage the defaulters not to play dilatory tactics in disposal of the Artharin suits. All that the Legislature intended is to minimise the abuse of the process of the Court in the garb of filing a restoration application, for, without depositing money, the unscrupulous litigants were approaching the Adalat indiscriminately compelling the Courts to engage in the fruitless matters.     . . . (24)

Constitution of Bangladesh, 1972

Articles 102 and 117

Despite the statutory provisions of preferring appeal, there are exceptional circumstances where an aggrieved party is competent to directly invoke writ jurisdiction bypassing the appellate forum. After minute examination of a case, if this Court finds that a party has come to this Court in clean hands and an injustice is about to be done to the said party, because the impugned order is passed by the Adalat without lawful authority or is ex-facie illegal or the Adalat has passed the impugned order going beyond its jurisdiction or the same suffers from malice in law, this Court becomes in a position to entertain a writ petition without being bothered about the availability of the appellate forum. In other words, save and except the forum excluded by the Constitutional provisions, such as the forum under Article 117 of the Constitution, this Court is always ready and happy to entertain a writ petition bypassing the appellate forum, if a petitioner comes with clean hand whose approach appears to the Court to be bonafide and who is truly in need of protection of this Court. . . . (28)

Mr. A.K.M. Asiful Haque, Advocate

…. For the petitioner

Ms. Hosneara Begum, Advocate

…. For respondent No. 3

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Rule was issued calling upon the respondents to show cause as to why the order no. 22 dated 12.04.2015, under the signature of the Judge, Artharin Adalat no. 1, Dhaka recorded in Artharin Suit no. 412 of 2013 in adjudicating the said Artharin Suit under Section 6(4) read with Section 19(1) of the Artharin Adalat Ain, 2003 without making any reference to the issues framed therein and also without discussing the deposition of the plaintiff’s witness and the exhibited documents, shall not be declared to have been passed without any lawful authority and is of no legal effect and/or pass any other order or direction as this Court may deem fit and proper.

2.          Succinctly, the facts of the case, as stated in the writ petition, are that the Sonali Bank Ltd (hereinafter referred to as ‘the Bank’ or respondent no. 2), as the plaintiff, instituted Artharin Suit no. 412 of 2013 on 01.12.2013 for recovery of Tk. 13,21,42,362 before the Artharin Adalat no. 1, Dhaka (shortly, the Adalat) impleading the petitioner as the defendant. The defendant-petitioner appeared in the said Artharin Suit (hereinafter referred to as ‘the suit’) by filing written statements denying all material allegations made in the plaint. The Adalat, having exhausted the required formalities under Section 22 of the Artharin Adalat Ain, 2003 (shortly, the Ain, 2003) for settlement of dispute by mediator, framed issues to adjudicate the controversy between the parties. Considering the pleadings of the parties, the Adalat fixed 02.04.2015 for peremptory hearing of the suit and an officer of the Bank, by filing some documents, which were marked as exhibit nos. 1-6, deposed on oath before the Adalat and, thereafter, the next date was fixed on 12.04.2015 and on that day while the engaged Advocate for the defendant failed to take any step, respondent-Bank filed Hazira on behalf of its witness. Although on that very day the suit was not fixed for ex-parte, the Adalat took up the case for ex-parte disposal and by invoking the provision of Section 6(4) and 19(1) of the Ain, 2003 the Adalat decreed the suit ex-parte holding that AÎ †gvKÏgvi AviwR, ev`x c‡¶i `vwLjx KvMRcÎ Ges b_x ch©v‡jvPbv Kivjvg| ev`x e¨vsK Gi `vex AvBbvbyMvfv‡e cÖgvwbZ nBqv‡Q| d‡j ev`x c¶ cÖv_©xZ cÖwZKvi cvB‡Z cv‡i| Being aggrieved and dissatisfied with the said decree, the defendant-petitioner filed the instant writ petition challenging the authority of the Artharin Adalat as to passing the ex-parte decree without discussing the issues and examining the plaintiff’s witness.

3.          The Rule was contested by the Bank (respondent no. 3) who filed affidavit-in-opposition averring, inter alia, that on the prayer of the defendant-petitioner, the Bank sanctioned loan facilities infavour of the petitioner upon obtaining mortgage of 80 decimals of land. The mortgage was created by depositing the title deed of some land as well as by making registered deed of mortgage for some land. A registered power of attorney and a personal guarantee infavour of the Bank to sell the property without intervention of the Court at the event of the petitioner’s failure to pay off the said loan amount were also taken from the petitioner against the loan. Eventually, the petitioner failed to make payment in-time and made written representations to the Bank vide letters dated 10.09.2007, 18.09.2007 and 20.102007 for re-schedulement of the time plus amount of installments and, pursuant to the petitioner’s above letters, the Bank rescheduled its loan. Even after reschedulement of the loan as per the prayer of the petitioner, the petitioner failed to make the payment again. Subsequently, on 03.06.2009, the petitioner made another application to the bank for reschedulement of his loan. Accordingly, the bank, by its sanction letter dated 30.10.2012, amended re-schedulement of loan. It is stated that this time also the petitioner failed to repay the loan and after the petitioner’s default in making the payment of the loan amount, the Bank sent notices and reminders but to no avail and, under the circumstances, the Bank instituted the Artharin Suit No. 412 of 2013 on 01.12.2013 against the petitioner and others for recovering its outstanding dues.

4.          Mr. A.K.M. Asiful Hoque, the learned Advocate appearing for the petitioner, takes us through the impugned ex-parte decree dated 12.04.2015 and submits that in adjudicating upon this suit ex-parte, the trial Court has committed an error of law. In elaborating his above count of submissions he takes us through the impugned order line-by-line and submits that when this petitioner was found absent on the date fixed for peremptory hearing, the learned Judge of the Trial Court was duty bound to fix a date for ex-parte hearing. Instead, the learned Judge unnecessarily showed hurriedness to dispose of the suit ex-parte, he submits. To present his above count of submissions in further detail, he takes us through entire order sheets and by pinpointing the contents of the order dated 02.04.2015, he argues that on the said date the PW-1 made his deposition in part and the trial Court fixed 12.04.2015 for further preemptory hearing (FPH) and on the stipulated date for FPH i.e. on 12.04.2015, when this petitioner for some unavoidable circumstances could not attend the Court, it took up the record for passing ex-parte judgment and order. He next submits that the impugned order has been passed by the learned Judge of the trial Court whimsically, as he failed to apply his mind judiciously. To substantiate his above count of submissions, he reads out the first portion of the impugned ex-parte judgment and order and submits that anyone with ordinary prudence would take a view that the learned Judge of the Artharin Adalat was callous and unmindful in recording his findings and observations.

5.          On a query by this Court as to the maintainability of this writ petition, Mr. Hoque refers to the following cases; namely National Engineers Vs. Jubak Housing Ltd. 67 DLR (AD) 2015 176, Ayesha Vs. Chairman, Second Labour Court 32 DLR (AD) 1980 68,  Abdul Hamid Vs. Artharin Adalat 68 DLR (2016) 148 and  Md. Arfan Uddin Akand & ors Vs. Artharin Adalat & others 15 BLT (HCD) 2007 343 and submits that it is the settled principle of law in our jurisdiction, as well as in all other jurisdictions of the sub-Continent, that when any order or judgment is passed by any judicial body going beyond its jurisdiction or if the Constitutional Court sitting in writ jurisdiction finds that the impugned order suffers from ex-facie illegality, then the Constitutional Courts are always competent to entertain a writ petition without complying with any condition laid down in any statute.

6.          By placing the above submissions, the learned Advocate for the petitioner prays for making the Rule absolute.

7.          Ms. Hosneara Begum, the learned Advocate appearing for the Bank (respondent no. 3) places her affidavit-in-opposition before this Court and by taking us through the annexures 1, 2, 3, 4 and 5  submits that the fact of taking loan is admitted by the petitioner and the suit having been filed in the year 2013 was disposed of in the year 2015 and, as per her, the learned Judge of the trial Court allowed sufficient time to the petitioner to submit written statements and relevant papers towards enabling the petitioner to prove his case before the trial Court. She places the provision of Section 19(1) of the Ain, 2003 and submits that when the defendant is found absent after taking up the case for hearing by the Adalat, the law mandates the Adalat to dispose of the Artharin suit ex-parte. Ms. Hosneara continues to submit that no illegality has been committed by the learned Judge of the Artharin Adalat in disposing of the suit ex-parte when the defendant was not found in the Court room on the date fixed for further preemptory hearing (FPH). She forcefully submits that the intention of the petitioner is to dillydally the disposal of the suit and, therefore, the petitioner, even after taking 2 years time in the trial Court, intentionally remained absent from attending the Court on the date fixed for the FPH. She argues that the Ain, 2003 is a special legislation and the scheme of the Ain, 2003 is to dispose of the suits for recovering loans from the defaulters within a specified time and, for that purpose, the Legislature has prescribed the time-frame for appearance of the defaulters before the Adalat, for submission of their written statements and for producing witnesses. The total time, on average, prescribed for disposal of an Artharin Suit is 6 months with some flexibility in seeking extended time. She argues that this provision of law is not only incorporated in a special law, but the same provision is also prescribed in the Code of Civil Procedure (CPC) that once the Court starts taking deposition, the same must be completed without any adjournment. In this case when the PW-1 started to give his deposition it was the foremost duty of the defendant to remain present in the Court room on the scheduled date, she submits. Ms. Hosneara continues to submit that the defendant-petitioner knowing fully well about the above provisions of law purposefully remained absent simply for prolonging the disposal of the suit. She submits that in the above circumstances the learned Judge of the Adalat has rightly applied the provision of Section 19(1) of the Ain, 2003 and, thereby, the Adalat has not committed any illegality.

8.          With regard to the issue of maintainability of this writ petition, the learned Advocate for the Bank refers to the case of Gazi M. Taufique Vs. Agrani Bank and others 54 DLR (AD) 6 and the Case of Osman Gani Gazi Chy Vs. Artharin Adalat and another 2016(1) LNJ 167 and submits that this writ petition is liable to be rejected outright only on the issue of maintainability. To substantiate her submission on the issue of maintainability, she then places the provisions of Section 19(1) and 19(3) of the Ain, 2003 and submits that the petitioner could have filed an application for setting aside the ex-parte decree  by filing an application within 30 days from the date of petitioner’s knowledge about passing the ex-parte judgment and order, or under the provisions of Section 41 of the Ain, 2003, the petitioner could have preferred an appeal upon depositing 50% of the decretal amount within 60 (sixty) days from the date of passing the decree by the Adalat. But instead of resorting to the said provisions, the petitioner purposefully opted this route invoking writ jurisdiction with an ulterior motive to squander the valuable time of this Court and, thereby, delay the execution of the decree passed by the Artharin Adalat.

9.          Ms. Hosneara then focuses on the manner and style of handling with this case by the petitioner and submits that this writ petitioner, by filing this writ petition obtained an order of stay on the execution proceedings and, that is how, the petitioner managed to kill 2 years time. He alleges that after obtaining Rule Nisi together with an interim order of stay, the writ petitioner did not take  any step to get this Rule heard and only when the Bank took steps for hearing of this case, the same was taken up for hearing.

10.      By making the above submissions, the learned Advocate for the Bank prays for discharging the Rule with exemplary costs.

11.      We have heard the learned Advocate for the petitioner and the learned Advocate for the Bank (respondent no.3), perused the writ petition and affidavit-in-opposition together with the annexures thereto. We have also considered the relevant laws and decisions placed before us by the parties.

12.      Since the issue of maintainability of this writ petition has been raised by the learned Advocate for the Bank, this Court is duty bound, at first, to deal with the maintainability issue before embarking upon the other issues involved in this case.

13.      In order to have a proper resolution on the issue of maintainability of this writ petition, it would be profitable if we look at the provisions of Section 41 of the Ain, 2003, which runs as follows;

41|           (1) gvgjvi †Kvb c¶, †Kvb A_© FY Av`vj‡Zi Av‡`k ev wWwµ Øviv ms¶z× nB‡j,  hw` wWµxK…Z UvKvi cwigvY 50 (cÂvk) j¶ UvKv A‡c¶v AwaK nq, Zvnv nB‡j Dc-aviv (2)  Gi weavb mv‡c‡¶, cieZx© 60 (lvU) w`e‡mi g‡a¨ nvB‡KvU© wefv‡M, Ges hw`  wWµxK…Z UvKvi cwigvY 50 (cÂvk) j¶ UvKv A_ev Z`&A‡c¶v Kg nq, Zvnv nB‡j cieZ©x 30  (wÎk) w`e‡mi g‡a¨ †Rjv RR Av`vj‡Z Avcxj Kwi‡Z cvwi‡eb|

(2) AvcxjKvix, wWµxK…Z UvKvi cwigv‡Yi 50% Gi mgwcivY UvKv ev`xi `vexi AvswkK ¯^xK…wZ¯^iƒc bM` wWµx`vi Avw_©K cÖwZôv‡b A_ev ev`xi `vwe ¯^xKvi bv Kwi‡j, RvgvbZ¯^iƒc wWµx cÖ`vbKvix Av`vj‡Z Rgv Kwiqv D³iƒc Rgvi cÖgvY `iLv¯— ev Avcx‡ji †g‡gvi mwnZ Av`vj‡Z `vwLj bv Kwi‡j, Dc-aviv(1) Gi Aaxb †Kvb Avcxj Kvh©v‡_© M„nxZ  nB‡e bv| (underlined by us)

14.      From a plain reading of the above provisions of the Ain, 2003 we find that if a party to an Artharin suit is aggrieved by an order or decree of the Adalat, s/he is required to prefer an appeal subject to fulfillment of the conditions with regard to depositing money and time-limitation.

15.      Given that the petitioner is a party to an Artharin suit and he is aggrieved with the decree passed by the Adalat, he is required to prefer an appeal before the appellate Court. From this point of view, the present writ petition is not maintainable.

16.      Let us now consider the submissions of the petitioner that without hearing and examining any witness, passing an ex-parte decree is ex-facie illegal and without jurisdiction, for, the learned Judge of the trial Court was duty bound to fix a date for ex-parte hearing when this petitioner was not present on the date of passing the impugned order.

17.      To this end, it would be profitable if we can look at the provision of Section 19(1) of the Artharin Adalat Ain, 2003 which runs as under;

19|   (1) gvgjv ïbvbxi Rb¨ avh© †Kvb Zvwi‡L weev`x Av`vj‡Z Abycw¯’Z _vwK‡j, wKsev gvgjv ïbvbxi Rb¨ M„nxZ nBevi ci WvwKqv weev`x‡K Dcw¯’Z cvIqv bv †M‡j, Av`vjZ gvgjv GKZidv m~‡Î wb¯úwË Kwi‡e|    

18.      From a plain reading of the above provisions, it appears to us that the Artharin Adalat is under a statutory obligation to dispose of a suit ex-parte in a situation when the defendant is not found present in the Court room after taking up the case by the Adalat.

19.      From a minute reading of the provisions of Section 19(1) of the Ain, 2003, thus, we find that the Adalat was competent to proceed with ex-parte disposal when the petitioner deliberately remained absent in a part-heard suit and, therefore, the maxim of exfacie illegality or without jurisdiction does not attract this case.

20.      In some of the rarest cases, when this Court found the writ petitioner to be a bonafide one, but merely because of non-compliance of some procedural provision or due to some technical defects, a party was about to suffer loss, this Court entertained the writ petitions without asking for depositing 50% or 10% of the decreetal amount, as the case may be, in order to do the justice to the oppressed party.

21.      Therefore, whether a party to an Artharin suit approaches this Court bonafide against a decree or post-decree order in seeking remedy, is a pivotal issue to be considered by this Court in entertaining a writ petition upon relaxation of the statutory requirement of depositing 10% of the decreetal amount for the ex-parte decree and 50% of the decreetal amount for the usual decree.

22.      In the case in hand, on the date of passing the impugned judgment and order, evidently the petitioner was not found present in the Court-room when the case was taken up and the defendant was called up. From the order sheets of the suit, it transpires that the suit was instituted on 01.12.2013 and the defendant (this petitioner) appeared in the suit on 23.02.2014 and, thereafter, the defendant filed written statement on 28.05.2014 and after adjournment of the hearing of the suit in a few occasions, eventually on 02.04.2015 the PW-1 started to give his deposition and at the closing of the business-hours of the Court, since the giving of deposition could not be completed, the next date for further peremptory hearing was fixed on 12.04.2015. Thus, we find that since the date of institution of the suit it took nearly 2 years to arrive at the stage of peremptory hearing (PH) and when the Adalat had started to take the deposition of the PW-1, it was the mandatory duty of the defendant-petitioner to remain present in the Court room. By not doing so, the defendant has clearly demonstrated his intention to delay the disposal of the suit and, under the circumstances, the Adalat has rightly invoked the provision of Section 19(1) of the Artharin Adalat Ain, 2003.

23.      In the past, the petitioner made several applications to the Bank praying for reschedulement with a promise to repay the loan amount and when the Bank rescheduled the loan by decreasing the amount of the payment to be paid in each installment and by relaxing the time of repayments, the petitioner did not bother to pay a single installment. The above conduct of the petitioner led us to take a view that the petitioner is simply avoiding the payments. Even after the ex-parte decree, while the petitioner could have deposited 10% of the decretal amount before the trial Court to have the ex-parte order set-aside, instead of doing so, the petitioner opted to invoke writ jurisdiction. The Legislature has kept an affordable provision for the loanees to get an ex-parte decree set aside subject to fulfillment of some conditions, namely (i) depositing of 10% of the decretal amount and (ii) approaching the trial Court within a prescribed time.

24.      From the annexures 1, 2, 3, 4 and 5, it transpires that the petitioner made applications one after another to the Bank with a prayer to reschedule the loan and, in the absence of any denial on the part of the petitioner about taking the loan and his promise to repay the same, there is hardly any scope for the petitioner to agitate any issue in the Adalat to dismiss the suit. The Bank had to file Artharin suit only when the petitioner did not keep his promise in making the payment, even after rescheduling the loan amount on few occasions. In such a case, when the petitioner is not denying his loan liabilities in any specific wordings/form in his written statement, the petitioner’s chance of being benefitted by giving further oral evidence before the trial Court is very slim. The petitioner having realised the above aspect of the suit, simply tried to prolong the disposal of the suit.

25.      The reason for inscribing the provisions of depositing money and approaching the trial Court within a stipulated time for setting aside an ex-parte decree in the Ain, 2003 is to oblige the loanees to co-operate with the Adalat in disposing of the suits timely and, thereby, warn them not to play foul with the Adalat. The above preconditions have been put upon the loanees with an aim to discourage the defaulters not to play dilatory tactics in disposal of the Artharin suits. All that the Legislature intended is to minimise the abuse of the process of the Court in the garb of filing a restoration application, for, without depositing money, the unscrupulous litigants were approaching the Adalat indiscriminately compelling the Courts to engage in the fruitless matters.

26.      Upon taking a lenient view regarding the petitioner’s step in filing this writ petition that the same might have been taken under a bonafide mistaken conception, this Court, in a bid to grant an equitable relief to the petitioner, offered an opportunity to the petitioner to go back to the Artharin Adalat by depositing 10% of the decreetal amount with an application for setting aside the ex-parte order. However, to our utter surprise, the learned Advocate for the petitioner did not agree to avail the said opportunity, rather he was adamant to contest this Rule and take a detailed judgment. Such conduct of the petitioner leads this Court to take a view that the motive of the petitioner is to buy some further time by taking the matter to the next available forum. The motive of the petitioner as to squandering time is visibly apparent from the fact that after obtaining an order of stay from this Court, the petitioner did not take any step to dispose of the case and, thus, this Court finds that the intention of the petitioner is to delay the execution process of the decree obtained by the Bank. Therefore, it is clear that the purpose of filing this writ petition is nothing but an attempt for frustrating the execution of the decree obtained by the Bank.

27.      Let us now consider as to whether an exemplary fine should be slapped in this case, as prayed for by the learned Advocate for the Bank. For arriving at a decision on this issue, we should look at the conduct of the present petitioner. The petitioner in conducting the hearing of this case is found to be seriously disinterested and was trying to waste the time of this Court. The instant Rule was fixed at the instance of the learned Advocate for the Bank and when the matter was taken up for hearing the learned Advocate for the petitioner was taking time on this or that plea. However, for ends of justice this Court allowed the time as prayed for by the learned Advocate for the petitioner on each occasions. After making the submissions by the learned Advocate for the petitioner at length both on factual aspect of this Case as well as on the maintainability issue, this Court expressed its mind that the Rule is destined to be discharged and the petitioner is at liberty to non-prosecute and, thereby, save the costs which would be slapped by this Court in the event of discharging the Rule. It was pronounced in open Court that in this Rule this Court does not find a single point for further examination by the Apex Court and, thus, the petitioner does not  need to take a detailed judgment towards preferring an appeal to the Apex Court. Despite the above view of this Court, the petitioner was determined to receive a comprehensive judgment even at the expense of paying exemplary costs with an intention to waste the valuable time of this Court.  This led us to take a view that the petitioner not only misused the valuable time of the learned Judge of the Artharin Adalat, but was also adamant to waste further time of the superior Courts.

28.      Given the above manner and style of dealing with the case by the petitioner, we are of the view that the petitioner deserves exemplary costs, for, the very intention of the petitioner is simply to buy some time for frustrating the execution of the decree obtained by the Bank.

29.      Despite the statutory provisions of preferring appeal, there are exceptional circumstances where an aggrieved party is competent to directly invoke writ jurisdiction bypassing the appellate forum. After minute examination of a case, if this Court finds that a party has come to this Court in clean hands and an injustice is about to be done to the said party, because the impugned order is passed by the Adalat without lawful authority or is ex-facie illegal or the Adalat has passed the impugned order going beyond its jurisdiction or the same suffers from malice in law, this Court becomes in a position to entertain a writ petition without being bothered about the availability of the appellate forum. In other words, save and except the forum excluded by the Constitutional provisions, such as the forum under Article 117 of the Constitution, this Court is always ready and happy to entertain a writ petition bypassing the appellate forum, if a petitioner comes with clean hand whose approach appears to the Court to be bonafide and who is truly in need of protection of this Court.

30.      In this case, we find that the petitioner has not come in clean hands as the petitioner’s only motive is to abuse the process of this Court by obtaining Rule and Stay with an intention to protract the disposal of the execution of the decree of the suit by filing this writ petition.

31.      While in a score of decisions of our Apex Court, it has been held that no writ petition lies against a post-decree judgment or order, which has also been reiterated in the recent cases of (i) Sonali Bank Ltd Vs Asha Tex International 20 BLC 185 and (ii) Osman Gazi Chowdhury Vs Artharin Adalat 2016 (1) LNJ 167, the writ petitioner’s option of invokation of writ jurisdiction is nothing but a deliberate step to abuse the process of this Court and, thus, this Court is of the view that the petitioner deserves to be slapped with an exemplary costs. 

32.      In the light of the ratio laid down in the aforesaid judgments, we hold that the present writ petition is not maintainable.

33.      In the result, the Rule is discharged with a cost of Taka 5,00,000/- (Five lacs) to be paid by the petitioner in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days from the date of receiving this judgment.

         The order of stay granted at the time of issuance of the Rule is hereby vacated.

Ed.